The opinion of the Court was delivered by
Gibson, C. J.
The sum of the evidence on the part of the plaintiff, in relation to the first of the two essential points in the cause, *214is contained in the testimony of Mr M’Giffin, and the deposition of Mr Morgan. The first of these testified, that when he was writing the will, the testator remarked, that “ as regards the devise to his brother John Hoge, it was a trust, and that he had no other way of doing it: he must leave it entirely to his honour.” That no words were used to designate the person for whom the trust was intended; but that John Hoge, the devisee, subsequently told the witness, “ that it was intended for young William Hogeand that he had “ suggested” to the testator to give the estate to him (John) as a means of obviating difficulties in securing the benefit of it to youqg William; that he had been a long time trying to get him to do it, but that he had not had sufficient courage. Mr Morgan deposed to an admission of John Hoge, that the devise to him had been in trust for young William; “that this had been done by his (John's) advice, or at his instance ; and that he had wanted his brother to do more for him.” Beside these, Mr Swearingen testified to admissions of “ an understanding between him and his brother, that if young William should marry and have a male heir, it would be in his power to do something decent for him.” The first question is, whether this evidence were competent to go to the jury, and, if not disproved, to found a trust for William, the plaintiff, who was the testator’s natural son.
Contemporary declarations of a testator have always been, not only competent, but powerful evidence of the fact declared ; and the competency of declarations by the devisee, while he was the owner of the land, will not be disputed. Indeed, the objection was rather to the fact itself, than the evidence of it; and it is contended that parol evidence of a trust is contrary to our statute of wills, which corresponds, as far as regards the point in dispute, with the British statute of frauds. Undoubtedly, every part of a will must be in writing ; and a naked parol declaration of trust, in respect of land devised, is void. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the legal title into a trustee, to get at him; and there is nothing in reason or authority to forbid the raising of such a trust, from the surreptitious procurement of a devise. In Dixon v. Olmius, 1 Cox’s Cha. Ca. 414, a devisee who had been guilty of several acts of fraud and violence, particularly in preventing an attorney, sent for by the testator to alter his will, from entering the bed room, was promptly declared a trustee for the party intended to have been benefited by the alteration. The question has been, as to the circumstances which constitute such a fraud as will be made the foundation of a decree. A mere refusal to perform the trust is, undoubtedly, not enough ; else the statute which requires a will of land to be in writing, would be altogether inoperative: and it seems to be requisite that there should appear to have been an agency, active or passive, on the part of the *215devisee in procuring the devise. In Whitton v. Russell, 1 Atk. 488, it was thought, by high authority, that even a promise to the testator to perform the trust, was not such an agency, because, as it was said, the fraud, if any, consisted not in the procurement of the will, but in the subsequent refusal to perform it; and that every breach of promise is not a fraud. But it was also thought that the testator had not, in fact, been drawn in to make the will by the promise; and on no other ground is the decision to be reconciled to a train of authorities by which it is conclusively established, that if he has executed his will on the faith of such a promise, the devisee shall be compelled to make it good. In Harris v. Horwell, Gilb. Eq. Rep. 11, a testator who had devised all his land to his nephew, desired his heir at law not to disturb him in the possession of certain after purchased lands; and it was so decreed. So in Chamberlaine v. Chamberlaine, 2 Freem. 34, a testator having settled lands on his son for life, and having discourse about altering his will, for fear there should not be enough beside to pay certain legacies to his daughters, was told by the son that he would pay them, if the assets were deficient; but afterwards, pretending that the lands devised to him fell short of these legacies, filed his bill to have a sum alleged to be equal to the deficiency, raised out of other parts of the estate ; and it was decreed that, having suffered his father to die in peace on a promise which had prevented him from altering his will, he should pay them himself, the chancellor further remarking, that it was the constant practice of the court to make decrees on such promises. That was a strong case, as the relief claimed would probably have put the son in no better condition than if the alteration had been made. To the same effect is Devenish v. Baines, Prec. in Cha. 3, in which a copyholder, intending to devise the greater part of his copy-hold to his godson, and advising with the copyholders how that might best be done, was prevailed upon by his wife to nominate her to the whole, on her promising to give the godson the part intended for him ; and it was decreed against the wife, notwithstanding the statute of frauds. And in Oldham v. Litchfield, 2 Vern. 506, lands were charged with an annuity, on proof that the testator was prevented from charging them in his will, by a promise of payment by the devisee. There are many other decisions to the same point; but I shall cite no more than Thynn v. Thynn, 1 Vern. 296, in which a son induced his mother, by promising to be a trustee to her use, to prevail on her husband to make a new will, and appoint him executor in her stead ; and he was so decreed. I have cited these authorities with a particular reference to their circumstances, to show that the difference taken in the argument between real and personal estate, is without foundation. The principle of the relief to be granted, is very satisfactorily disclosed by Lord Hardwicke, in Reech v. Kennegal, 1 Ves. 122, where an executor and residuary legatee, who had promised to pay a legacy not in the will, was decreed to discharge it out of the assets; and I shall close my remarks on this *216part of the case with a recapitulation of his introductory observations. The rule of law and of the court, said the chancellor, strengthened by the statute is, that.all the legacies must be written in the will; and that all the arguments against breaking in on wills by parol proof were well founded. But notwithstanding that, the court had adhered to the principle that whenever a case is infected with fraud, the court will not suffer the statute to protect it so that any one shall run away with a benefit not intended. That the question was, whether the allegation of fraud were strengthened by the promise of the defendant; and he was of opinion that it was. That it had been taken that the fraud must be on him who might have remedy by law; but the court considered it as a fraud also on the testator. To apply this to the. case at bar. If the testator was induced by the promise of his brother, much more if by his suggestion, to believe that a devise to him was the most prudent plan of securing the estate to his illegitimate son, it cannot be said that a breach of confidence thus reposed in him, was intended to be protected by the statute ; and with a direction to this effect, the point was put to the jury-
If, then, equity would have decreed the trust against the devisee, it remains to be seen whether the plaintiff has precluded himself from insisting, on it against the defendant. The plaintiff had brought his ejectment against a tenant of the devisee, to which the latter had declined to become a party, and while the cause was before arbitrators, had executed a conveyance, the nature of which will presently be stated, to the present defendant, David Hoge, and his son William, by which he became a witness and testified, it is to be presumed, to the facts contained in his deposition here. This advantage would not have been accorded to him on a bill in equity, for which our ejectment is a substitute, as he would have been made a party. As it was, however, the cause was compromised under the pressure of his testimony, the plaintiff conveying his equity to the defendant, and the latter executing a bond with condition to convey to the former certain lands to be selected by him from a larger body. These were subsequently selected, and a part of them sold by the plaintiff.
By the conveyance of John, the devisee, an estate in tail male was limited to William, the defendant’s son, with power to his father, whom I treat as the party really interested, to take the profits during his life, and to “sell and dispose of” the estate, if he should deem it necessary, for the education and advancement in life of his male children. This was a power in gross, or perhaps simply collateral, but being a general one, it gave the fee simple to the father, just as if it had been conveyed to him by a deed of bargain and sale, instead, as this was, of a covenant to stand seised; consequently the legal estate being in the defendant, the parties stood, at the time of the compromise, in the relation of cestuy que trust and trustee.
The compromise of a doubtful title when procured without such *217deceit as would vitiate any other contract, concludes the parties, though ignorant of the extent of their rights; and this part of the case depended, therefore, on the plaintiff’s ability to bring home to the defendant a knowledge of the falsehood and malpractice imputed to the devisee. The direction presupposed the existence of such practice; and the point was to fix the degree of connivance necessary to make the defendant participant of it. The jury were instructed that if the release were “ obtained through the misrepresentation of John Hoge, and in consequence of the influence of his testimony and the persuasion of the arbitrators, it is not binding, if David Hoge knew of such misrepresentations and availed himself unduly of such influence and misrepresentations.” Who can doubt it ? The least advantage taken with a knowledge that it flowed from a corrupt source, would be undue and fatal to the contract. Again: “ Should you find that the release was procured by the fraud, falsehood, imposition or influence of John Hoge, it is void, however innocent David Hoge may he, if the agency or interference of John Hoge was employed to affect the arrangement. But if David Hoge knew of no such misrepresentation, nor had unfair advantage from such influence and persuasions; if he was not privy to any fraud, falsehood or imposition, even supposing John Hoge had perjured himself in the testimony which he gave before the arbitrators, and David Hoge had no knowledge or reason to believe it was so, the agreement of compromise will not be avoided.” It must be admitted that in attempting to attain to greater precision by repeating the same proposition in different words, the judge has expressed himself not without a shade of obscurity; for it is not easy to determine, without a view of the context, what was meant by innocence which could employ the fraud, falsehood and imposition of another. But in putting the converse of the proposition, it was clearly explained, that by innocence was meant that comparative degree of culpability which consists in abstaining from an interference in the criminal act, but without rejecting a benefit procured by it; for the jury were plainly instructed that if the defendant had neither knowledge of the deceit nor reason to suspect the devisee of playing a foul game for his benefit, the compromise which was the consequence of it would be a binding one. Could he ask for more? Standing as a volunteer, and perhaps the instrument of a corrupt purpose, he ought to appear clearly to have been an unconscious one. He was bound not merely to a scrupulous observance of good faith, but even to vigilance in detecting whatever might give him an unfair advantage. A participation in the benefits of the fraud, having knowledge of its existence, or leaving the means of knowledge unimproved, would undoubtedly implicate him as a confederate, and whether as an active or a passive one, would be immaterial to the question. In this view the point was submitted, and in language which could not on the whole have been misunderstood by the jury.
*218The remaining points seem to have been immaterial. In regard to this species of trust, the illegitimacy of the beneficiary can never be a circumstance of moment, since equity would undoubtedly declare any one a trustee who would interpose between a testator' and his bounty to a stranger. Neither could the alleged delay in prosecuting, affect the right: certainly it could not, as regards the perpetrator of the fraud or one-standing in his place. Beside, it does not appear there was any considerable lapse of time between the discovery of the deception alleged to have been practised in the compromise, and the institution of the suit. Finally, the direction prayed in the defendant’s ninth point, was actually given in the very part of the charge to which I have particularly adverted; and in no part of the cause do we perceive any thing which requires it to be sent to another jury.
Kennedy, J, took no part in the judgment, having been of counsel with the plaintiff in error.
Judgment affirmed.